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Ms. Ishma Randhawa, learned counsel for the complainant, would assert that the appellate Court erred in law in setting aside the judgment of the trial Court while allowing the application filed by her client under Section 391 Cr.P.C.

This Court finds merit in this submission.

Section 391 Cr.P.C. authorizes an appellate Court to take further evidence, or direct it to be taken, in fit cases. It provides that, while dealing with any appeal, an appellate Court is empowered, if it thinks that additional evidence is necessary and records reasons therefor, to either take such evidence itself or direct it to be taken by a Magistrate.

No doubt, the accused had filed an independent appeal against his conviction and sentence but once the appellate Court found sufficient grounds to allow additional evidence to be adduced under Section 391 Cr.P.C. in the complainant's appeal, it could not have decided the appeals at that stage. Both appeals necessarily had to await the adducing of additional evidence so that the appellate Court could take the same into account while deciding them comprehensively. Having found enough grounds to allow the application filed under Section 391 Cr.P.C. in the complainant's appeal, the appellate Court was not justified in dismissing the said appeal as infructuous and in setting aside the judgment dated 18.09.2013 of the learned Additional Chief Judicial Magistrate, 6 of 11 Amritsar, in the appeal of the accused. The interlocutory order allowing the application would not survive independently once the main appeal, in which the said application was filed, was dismissed. The approach of the appellate Court therefore defies law, logic and comprehension.

However, by way of CRR-3772-2018, the accused assails the correctness of the appellate Court's decision in allowing the said application filed under Section 391 Cr.P.C. At this stage, it may be noted that Section 391 Cr.P.C. empowers an appellate Court to call for additional evidence, be it before itself or the Magistrate concerned, once it forms an opinion that such additional evidence is necessary and records reasons therefor. Therefore, the contents of the application filed by the complainant are not conclusive in themselves to determine the validity and correctness of the opinion formed by the appellate Court as to the necessity for such additional evidence. Having examined the matter on merits, the appellate Court found that defamatory material had been published in the offending advertisement against the complainant but opined that sufficient evidence was not placed on record to fasten liability therefor upon the accused. The appellate Court noticed that the trial Court had not used coercive measures to secure the presence of the concerned Clerk of Jagbani Newspaper so as to determine the link between the advertisement and the accused, if any, and that the record maintained by the office of Jagbani Newspaper was also not produced. It was in these circumstances that the appellate Court concluded that the trial Court had closed the evidence in a hasty manner and allowed the complainant's 7 of 11 application under Section 391 Cr.P.C., directing the trial Court to allow the complainant to examine the concerned Clerk from the office of Jagbani Newspaper, along with the summoned record.

The argument of Mr. S.P.S. Sidhu, learned counsel, that the application was liable to be dismissed on the ground of delay does not 8 of 11 merit consideration. No doubt, the said application was filed in the year 2017, long after the institution of the appeal in the year 2013. However, as pointed out by the Supreme Court in Brigadier Sukhjeet Singh (Retired) MVC vs. State of Uttar Pradesh and others [(2019) 16 SCC 712], when the statute grants a right of appeal, the appellant has every right to take all steps and take the benefit of all the powers of the appellate Court to secure the ends of justice. It was further pointed out that the endeavour of all Courts is to reach the truth and in a criminal case, an appellate Court has to consider as to whether conviction of the accused is sustainable or a case is made out for acquittal. Earlier, in Sudevanand vs. State through Central Bureau of Investigation [(2012) 3 SCC 387], the Supreme Court held that mere delay is no ground for rejecting an application under Section 391 Cr.P.C., particularly when the applicant was not responsible for the inordinate delay in the disposal of the appeal. Therefore, the delay in the filing of the application by the complainant cannot be held to be fatal. Further, as pointed out supra, the appellate Court had suo motu power to exercise discretion under Section 391 Cr.P.C. and call for additional evidence after recording reasons therefor. Therefore, the delay in the filing of the application does not vitiate the opinion formed by the appellate Court.